HERITAGE COUNCIL HEARINGS PROTOCOL 1
General Information about Heritage Council Hearings
1.Types of hearing
There are two kinds of hearing:
(i)Registration Hearings – hearings regarding a recommendation to include or not include a place/object in the Heritage Register; and
(ii)Permit Appeal Hearings – hearings in response to a refusal to grant a permitor conditions placed on a permit.
A Committee of at least three (3) members or alternate members of the Heritage Council will conduct the hearing. All hearings are open to the public.
2.Registration Hearings
2.1Anyone may make a submission to the Heritage Council about a recommendation of the Executive Director to include or not include a place/object in the Heritage Register.
2.2A submission should be lodged with the Heritage Council, in writing, in the form “Heritage Council Hearings Protocol 2: Registration Submission to Heritage Council”. This must be done within 60 days of the Executive Director’s recommendation. The submitter may request a hearing.
2.3The Heritage Council:
(i)must have a hearing if requested by the National Trust or a person with a real and substantial interest in the place/object;
(ii)must have a hearing if submissions are received objecting to the Executive Director’s recommendation not to include a place/object in the Heritage Register;
(iii)may conduct a hearing in other cases.
If a hearing is not required under (i) or (ii) above, the Heritage Council may determine the matter without a hearing.
2.4If a Registration Hearing is to be held, the following people will have the opportunity to lodge detailed submissions for Heritage Council consideration:
(i)the Executive Director, Heritage Victoria;
(ii)the owner;
(iii)the National Trust;
(iv)a person who made a submission in responseto the Executive Director’s recommendation to include or not include a place/object in the Heritage Register;
(v)a person with a real and substantial interest in the place/object;
(vi)the person who requested the hearing; and
(vii)any person who the Heritage Councilallows in order to inform itself.
2.5The above people will have the opportunity to verbally present their submission at the hearing.
2.6The relevant issues to be considered by the Heritage Councilare:
(i)whether or not the place/object is of cultural heritage significance in accordance with s8(2) Heritage Act 1995(this includes consideration of the “Heritage Council Criteria for the Assessment of Cultural Heritage Significance”, adopted 7 August 2008);
(ii)the extent of registration; and
(iii)categories of work/activities able to be carried out without the need for a permit.
Note: specific development proposals that may affect the place in the future cannot be considered.
2.7‘The Victorian Heritage Register Criteria and Threshold Guidelines’ outlining key considerations in determining whether a place or object is of state level cultural heritage significance are available at
3.Permit Appeal Hearings
3.1There are two kinds of Permit Appeal Hearings:
(i)The permit applicant, the owner or a person with a real and substantial interest in the place/object can appeal against a refusal of the Executive Director to issue a permit for all or some of the proposed works (within 60 days of the Executive Director’s decision).
(ii)The permit applicant or the owner can appeal against any condition in a permit (within 60 days of Executive Director’s decision).
3.2An appeal shouldbe lodged with the Heritage Council, in writing, in the form “Heritage Council Hearings Protocol 3: Permit Appeal to Heritage Council”.
3.3In the event of a Permit Appeal Hearing, the following people will have the opportunity to lodge detailed submissions for Heritage Council consideration:
(i)the Executive Director;
(ii)the appellant (permit applicant, owner; and, in the case of refusal, a person with a real and substantial interest in the place/object);
(iii)the National Trust if it requested a hearing; and
(iv)any person the Committee allows in order to inform itself.
3.4The above people will have the opportunity to verbally present their submission at the hearing.
3.5The Heritage Council may ask the appellant for any additional information it thinks necessary to assist the determination of the appeal.
3.6In the case of a permit refusal, the Heritage Council may request draft permit conditions from the Executive Director prior to the hearing. Draft conditions will be circulated to all people involved in the hearing to allow for comment.
3.7Amendment of plans – the Heritage Council has prepared a protocol for the consideration of amended plans (“Heritage Council Hearings Protocol 4: Lodging Amended Plans”). It is for the Heritage Council to determine in its discretion whether amended plans will be allowed.
3.8The Heritage Council must consider the issues set out in s.73(1) Heritage Act1995 (attached).
4.All hearings
4.1Prior to the hearing:
(i)Requests to be heard and scheduling of hearing
If persons wish to verbally present their submission to the Heritage Council they should complete and return the form “Heritage Council Hearings Protocol 5: Request to be Heard”. A timetable for the hearing will be prepared on the basis of information provided in this form.If it is felt a longer time is required for the hearing than allocated, the Hearings Coordinator should be notified immediately.
For complex matters, the Heritage Council may schedule a directions hearing to assist in managing the hearing process e.g. to determine numbers of submitters, experts, time scheduling etc.
(ii)Detailed submissions
Detailed written submissions (A4 2 hole punched and stapled) must be lodged with the Heritage Council 28 days prior to the hearing date. This must include any written expert evidence and any photographic or visual evidence upon which the personintends to rely (including visual material that may be used for the purposes of a powerpoint presentation at the hearing).
Submissionswill be provided to all other parties prior to the hearing and may also be obtained by members of the public through the provisions of the Freedom of Information Act1982.
Submissions must relate to the relevant issues (see 2.6 and 3.8).
(iii)Submissions in reply
All parties will have an opportunity to respond to other submissions and evidence in writing prior to the hearing. Asubmission in reply is not compulsory but it allows the opportunity to challenge the claims of other parties.
A submission in reply must be lodged with the Heritage Council 7 days prior to the hearing. These will be provided to all other parties prior to the hearing and may also be obtained by members of the public through the provisions of the Freedom of Information Act.
(iv)Adjournments
If anypersonwishes to adjourn a hearing an application should be made within a reasonable time, in writing, in the form “Heritage Council Hearings Protocol 6: Request for Adjournment”. The Heritage Council requires the personrequesting an adjournment to seek the written consent of all parties to the hearing. If another party does not consent to an adjournment, brief reasons must be provided to explain why that party does not consent.
The Heritage Council will determine in its discretion whether the adjournment will be granted.
(v)Withdrawals
A ‘withdrawal’ is a written notification from a party to a hearing that they no longer wish to be heard in relation to their written submission.
A partythat wishes to withdraw from a hearing, including a party who may have caused the hearing to be scheduled, must advise the Heritage Council in writing without delay.
Where a party had caused a hearing to be held, that withdrawal may result in a hearing not being held. If a hearing is not held, the Heritage Council will make a decision after a consideration of any written submissions.
(vi)Site inspection
The Heritage Council may in its discretion conduct a site inspection prior to, during,or following the hearing.Ordinarily, site inspections will be unaccompanied, except for the Hearings Coordinator. The owner may be in attendance if it is necessary to obtain access or for security reasons. Expert witnesses and advocates are not to be present during site inspections, except with the written permission of the Heritage Council.No representations to the Heritage Council will be permitted during the course of the inspection.
(vii)Additional information
The Heritage Council may seek additional information from any personat any stage of the hearings process.
4.2At the Hearing:
(i)A Committee of at least three (3) members or alternate members of the Heritage Council will hear the appeal.
(ii)See 2.4and 3.3 regarding who may make a submission at the hearing.
(iii)A personmay be represented by another (e.g. a legal representative).
(iv)The order of hearing submissions will generally be:
(a)the Executive Director
(b)other parties
(c)the owner/applicant
(v)Photography or recording of Heritage Council proceedings
Heritage Council hearings are open to all members of the public and the media. However, photography, as well as the video or audio recording of proceedings is prohibited.
(vi)Verbal submissions
Verbal submissions should be as brief as possible and should reflect the main arguments of the written material lodged.The lengthy restatement of points made by previous speakers should be avoided.
The Committee will monitor the length of verbal submissions given the time set for the hearing in its discretion.
(vii)Witnesses
Witnesses may be called to give verbal evidence at a hearing. These witnesses may be expert witnesses (see 4.2(x). The verbal evidence presented by witnesses should reflect the main arguments of the written evidence previously lodged.
(viii)New material
Given the procedure of circulating submissions, evidence and submissions in reply prior to the hearing, new written or visual material (including photographic evidence, plans, maps or powerpoint presentations) should not be introduced at the hearing. It is in the Committee’s discretion whether new materialwill be allowed. In some circumstances new material may be grounds for another party to seek an adjournment or request to respond to the new material in writing.
(ix)Adjournments
An adjournment may be sought at the hearing. Whether it is granted will be in the Committee’s discretion. The Committeewill have regard to the reasons given for any request for an adjournmentand any inconvenience or cost caused to another party.
(x)Questions
Direct questioning of an expert witness by any party to the hearingis permitted. Expert witnesses are individuals with established or recognised expertise in a relevant subject area who are called by a party to the hearing.
The purpose of questioning an expert witness is to assist the Committee to make an informed decision, bearing in mind the Committee is comprised of persons with recognised skills in areas related to the functions of the Heritage Council. Questions which are irrelevant, repetitive, badgering or otherwise inappropriate shall be disallowed at the Chair’s discretion.
Questions of clarification directed topersonsand non-expert witnesses by other partiesareonly permitted with the leave of the Chair.
The Committee may ask questions of all partiesand witnesses.
(xi)Costs
Orders relating to costs cannot be made by the Heritage Council.
(xii)Decision
The Heritage Council must determine a permit appeal within 60 days of the lodging of the appeal (except where further information is sought or an adjournment has been granted).
The Heritage Act does not specify a time within which a registration decision must be made. The Heritage Council may indicate at the hearing when a written decision will be available.
A written decision will be sent to all parties and a copy published on the Heritage Council website and the Australian Legal Information Institute’s Victorian Law Resources at
5.Further Reference
(i)Heritage Act (heritagecouncil.vic.gov.au/heritage protection/newregistrations/
(ii)The Victorian Heritage Register Criteria and Threshold Guidelines (heritagecouncil.vic.gov.au/heritage protection/criteriaandthresholdsforinclusion/)
(iii)Heritage Council Hearings Coordinator (phone (03) 8392 5160 or email )
Section 73 – Heritage Act 1995
(1)In determining an application for a permit, the Executive Director must consider—
(a)the extent to which the application, if approved, would affect the cultural heritage significance of the registered place or registered object; and
(ab)if the application relates to a listed place or to a registered place or registered object in a World Heritage Environs Area, the extent to which the application, if approved, would affect—
(i)the world heritage values of the listed place; or
(ii)any relevant Approved World Heritage Strategy Plan; and
(b)the extent to which the application, if refused, would affect the reasonable or economic use of the registered place or registered object, or cause undue financial hardship to the owner in relation to that place or object; and
(c)any submissions made under section 69; and
(d)any decision of the Heritage Council under section 72 which has been received; and
(e)if the applicant is a public authority, the extent to which the application, if refused, would unreasonably detrimentally affect the ability of the public authority to carry out a statutory duty specified in the application; and
(f)any matters relating to the protection and conservation of the place or object that the Executive Director considers relevant.
(1A)In determining an application for a permit, the Executive Director may consider—
(a)the extent to which the application, if approved, would affect the cultural heritage significance of any adjacent or neighbouring property that is—
(i)subject to a heritage requirement or control in the relevant planning scheme; or
(ii)included in the Heritage Register; and
(b)any other relevant matter.
Adoptedby the Heritage Council
7 February 20131